Colorado § 4-8-113 - Statute of frauds inapplicable.

§ 4-8-113. Statute of frauds inapplicable.

A contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making.

Source: L. 96: Entire article R&RE, p. 215, § 2, effective July 1.

Editor's note: This section is similar to former § 4-8-319 as it existed prior to 1996.

ANNOTATION

Annotator's note. Since § 4-8-113 is similar to § 4-8-319 as it existed prior to the 1996 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

The statute of frauds set out in this section is more limited in its requirements than are more old-fashioned statutes having to do with the sale of goods. Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

The purpose of this section is to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the unassisted memory of witnesses. Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

When parties agree to the tape recording of an oral agreement, such tape recording satisfies the requirements of § 4-8-319. Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

Where the identity of the contractors is established. With respect to the requirement for signature contained in this section, then, since the clear purpose of this provision is to require identification of the contracting party, where the identity of oral contractors is established a tape recording itself is enough. Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

The tape recording of an oral contract would be a "reduction to tangible form", under the U.C.C. provisions found in section 4-1-201, defining "written" and "writing". Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

Where a party admits in his testimony the accuracy of a tape recorded oral contract, then accordingly, he has admitted "in his pleading, testimony, or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price". Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

As to the applicability of the statute of frauds, the retention and enjoyment of the benefits of a bargain validate the alleged unauthorized part of the transaction. Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

Sufficient part performance is found to take oral agreement out of statute. See Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212 (D. Colo. 1972).

Detrimental reliance on oral promises may compel performance. The principle embodied in section 139 of the restatement (second) of contracts that detrimental action performed in justifiable reliance upon oral promises may be sufficient to compel full or partial performance of the promise in spite of the applicability of a statute of frauds defense that was applicable in a case involving an oral agreement to sell securities. Kiely v. St. Germain, 670 P.2d 764 (Colo. 1983).